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Approved by the ABA House of Delegates,
February 12, 2007
AMERICAN BAR ASSOCIATION
CRIMINAL JUSTICE SECTION
REPORT TO THE HOUSE OF DELEGATES
RECOMMENDATION
1 RESOLVED, That the American Bar Association urges federal, state, local, territorial,
2 and tribal governments to ensure that prisoners are afforded meaningful access to the judicial
3 process to vindicate their constitutional and other legal rights and are subject to procedures
4 applicable to the general public when bringing lawsuits.
5
6 FURTHER RESOLVED, That the American Bar Association urges Congress to repeal or
7 amend specified provisions of the Prison Litigation Reform Act (PLRA) as follows:
8
9 1. Repeal the requirement that prisoners (including committed and detained juveniles
10 and pretrial detainees, as well as sentenced prisoners) suffer a physical injury in order
11 to recover for mental or emotional injuries caused by their subjection to cruel and
12 unusual punishment or other illegal conduct;
13
14 2. Amend the requirement for exhaustion of administrative remed ies to require that a
15 prisoner who has not exhausted administrative remedies at the time a lawsuit is filed
16 be permitted to pursue the claim through an administrative- remedy process, with the
17 lawsuit stayed for up to 90 days pending the administrative processing of the claim;
18
19 3. Repeal the restrictions on the equitable authority of federal courts in conditions-of-
20 confinement cases;
21
22 4. Amend the PLRA to allow prisoners who prevail on civil rights claims to recover
23 attorney's fees on the same basis as the general public in civil rights cases;
24
25 5. Repeal the provisions extending the PLRA to juveniles confined in juvenile detention
26 and correctional facilities; and
27
28 6. Repeal the filing fee provisions that apply only to prisoners.
29
30 FURTHER RESOLVED, That the American Bar Association urges Congress to hold
31 hearings to determine if any other provisions of the PLRA should be repealed or modified and
32 that other legislatures having comparable provisions do the same.
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1 FURTHER RESOLVED, That the American Bar Association ur ges Congress to hold
2 hearings to determine what other steps the federal government may take to foster the just
3 resolution of prisoner grievances in the nation's prisons, jails, and juvenile detention and
4 correctional facilities.
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REPORT
In 1996, Congress enacted the Prison Litigation Reform Act (PLRA). Pub. L. No.
104-34, 110 Stat. 1321 (1996). Although the PLRA placed substantial restrictions on
prisoners’ access to the courts to vindicate constitutional and other legal rights, Congress
never fully vetted the statute and its implications. A House Report issued in 1995 briefly
discussed two House bills that contained some, but not all, of the provisions that were
later included in the PLRA. H.R. REP. NO. 104-21, at 5-6 (1995). But the PLRA itself
simply was inserted and approved as a rider to an omnibus appropriations bill, much to
the consternation of members of Congress who recognized the need for in-depth review
of legislation of such import. See, e.g., 142 CONG. REC. S2297 (1996) (statement of
Senator Simon) (“I am very discouraged that this legislation was considered as one of the
many issues on an appropriations bill. Legislation with such far-reaching implications
certainly deserves to be thoroughly examined by the committee of jurisdiction and not
passed as a rider to an appropriations bill.”).
For several reasons, the PLRA is of especial concern to all who believe in the
need to adhere to the Constitution and other legal requirements. First, the Act places
formidable, and often insurmountable, obstacles in the paths of incarcerated individuals
seeking redress from the courts for violations of their federally secured rights. And
without access to the courts, the legal rights accorded prisoners are ephemeral and
unenforceable – meaningless words and empty promises.
Second, the PLRA contravenes the basic premise, one to which the American Bar
Association has long subscribed, that it is as important for prisoners to have ready access
to the courts to enforce their legal rights as it is for everyone in our country. For over
twenty-five years, the ABA steadfastly has maintained that convicted individuals should
be able to bring and defend lawsuits “under procedures applicable to the general public.”
ABA Standards for Criminal Justice, Collateral Sanctions and Discretionary
Disqualification of Convicted Persons, Standard 19-2.6(a)(i) (3rd ed. 2004); ABA
Standards for Criminal Justice, Legal Status of Prisoners, Standard 23-8.5(a) (1981).
Third, the PLRA singles out for differential treatment individuals who are
particularly vulnerable to violations of their constitutional and other legal rights. In part
because prisoners are isolated from public view, in part because they are so reviled, and
for other reasons, prisoners are frequently the targets and victims of illegal conduct. The
recently issued report of the Commission on Safety and Abuse in America’s Prisons
reaffirmed what is generally known about the nation’s correctional systems: that
problems of sexual and physical abuse of prisoners, the failure to meet their basic
medical and mental- healthcare needs, and sordid conditions of confinement continue
unabated in many prisons and jails across the country. Commission on Safety and Abuse
in America’s Prisons, Confronting Confinement (2006). The Commission report also
underscored that the federal courts historically have played an integral role in unveiling
and remedying the mistreatment of prisoners and violations of their rights that occur
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behind the walls and fences of this nation’s prisons and jails, a role that the Commission
found the PLRA has greatly undermined. Id. at 84-87.
Fourth, the PLRA singles out for differential treatment individuals who are
particularly ill- equipped to surmount the barriers to justice the Act erects. Most prisoners
are functionally illiterate, with seven out of every ten performing at the lowest literacy
levels. Karl O. Haigler et al., Literacy Behind Prison Walls xviii, 17 (1994). More than
half of all prisoners, including jail inmates, are mentally ill. Bureau of Justice Statistics,
U.S. Dep’t of Justice, Mental Health Problems of Prison and Jail Inmates, at 1 (2006).
And the persons subject to the PLRA include another category of individuals especially
vulnerable to the prolixities of the PLRA: juveniles, those confined in juvenile as well as
adult detention and correctional facilities.
The ABA is calling on Congress to revisit the PLRA and repeal or amend those
provisions of the Act that curtail the ability of confined juveniles, jail inmates, and
prisoners to vindicate their constitutional and other legal rights. As a first priority, the
ABA is urging Congress to make the following changes to the PLRA:
1. Repeal the PLRA’s physical-injury requirement. The PLRA prohibits a
prisoner from recovering damages for mental or emotional injuries suffered
while in custody unless the prisoner also was injured physically. See 42
U.S.C. § 1997e(e). The effect of this provision is to leave a wide range of
constitutional violations beyond redress, including some forms of torture.
See, e.g., Bean v. Washington, 1999 WL 759481 (N.D. Ill. 1999) (prisoner’s
claim for damages dismissed where correctional officials sicced an attack dog
on the plaintiff, but the dog did not bite him); Walker v. Akers, 1999 WL
787602 (N.D. Ill. 1999) (claim alleging that correctional officer, while holding
an electric stun gun, demanded that the prisoner-plaintiff perform a sex act
dismissed because of the absence of a physical injury). Absent a physical
injury, the requirement bars prisoners confined in vile conditions or subjected
to patent violations of their constitutional rights from obtaining compensatory
relief. See, e.g., Alexander v. Tippah County, Mississippi, 351 F.3d 626, 631
(5th Cir. 2003) (physical- injury requirement necessitated the dismissal of the
Eighth Amendment claim of a prisoner who vomited from the smell of the
raw sewage covering the floor of his isolation cell); Harper v. Showers, 174
F.3d 716, 719 (5th Cir. 1999) (prisoner confined in filthy, feces-smeared cells
barred by the physical- injury requirement from recovering damages); Ashann-
Ra v. Commonwealth of Virginia, 112 F. Supp. 2d 559, 566 (W.D. Va. 2000)
(although prisoner’s complaint that female officers routinely saw his genitals
stated a violation of a “clearly established” constitutional right, the physical-
injury requirement barred his claims for monetary relief). And because most
courts have construed the physical- injury requirement to apply to
constitutional violations that typically do not cause physical injuries, such as
First Amendment, equal protection, and procedural due process violations,
prisoners cannot obtain compensatory relief for violations of these
fundamental rights. See Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir. 2005)
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(listing cases holding that the physical- injury requirement applies to all
constitutional violations).
2. Amend the requirement for exhaustion of administrative remedies to provide
that prisoners who have filed a lawsuit within the time period set by the
statute of limitations but have not exhausted their administrative remedies can
pursue their claim through an administrative-remedy process while the
lawsuit is stayed. The PLRA requires prisoners to exhaust available
administrative remedies before filing a lawsuit that challenges the legality of
the conditions of their confinement under 42 U.S.C. § 1983 or any other
“[f]ederal law.” In Woodford v. Ngo, 126 S.Ct. 2378 (2006), the Supreme
Court held that this exhaustion requirement implicitly includes a procedural-
default sanction. In other words, if a prisoner does not file a grievance within
the timelines set by prison officials, the prisoner has failed to exhaust
administrative remedies and is barred from bringing suit. In an amicus brief
filed with the Supreme Court, the American Bar Association strongly
disagreed with this interpretation of the PLRA’s exhaustion requirement.
One of the problems with the exhaustion requirement, as it is currently
constructed, is that it effectively closes the courthouse door to many prisoners.
See, e.g., Gauntt v. Miracle, 2002 WL 1465763 (N.D. Ohio) (complaint
alleging injuries from a correctional officer’s excessive use of force dismissed
because of the prisoner’s failure to meet a 5-day deadline in filing a
grievance). The deadlines for filing a prison grievance typically are very
short, usually no more than fifteen days and in some states as little as two to
five days. See id. at 2402 (Stevens, J., dissenting). In effect, a procedural-
default rule engrafted onto the exhaustion requirement imposes a statute of
limitations on many prisoners that ranges from a few days to a few weeks.
Yet the Supreme Court has recognized that many victims of civil- rights
violations will not recognize, even within 120 days, that their rights have been
violated. See Felder v. Casey, 487 U.S. 131 (1988) (holding that a state
statute requiring that state and local officials be notified of a claim within 120
days after the incident on which it is based is unenforceable in a § 1983 suit).
Prisoners, isolated from the outside world and often illiterate, are even less
likely to recognize, in an even shorter timeframe, that their rights have been
violated and that they have the right to legal redress. And since prisoners live
in an environment fraught with suspicion and fears of retaliation, they are
even less likely to muster the courage, particularly under such tight time
constraints, to seek the redress to which they are or may be entitled. Finally,
some constitutional violations are so egregious (e.g., rape by a correctional
officer) or stigmatizing (e.g., failure to protect from a homosexual assault) that
a prisoner-victim will need more time than that allotted for the filing of a
grievance to overcome the trauma of the event before seeking administrative
or legal redress.
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Consequently, the PLRA’s exhaustion-of-remedies requirement should be
amended to allow prisoners the same amount of time as other individuals to
recognize and pursue their legal rights. This objective can be realized by
allowing prisoners who have filed a lawsuit within the time period set by the
statute of limitations but have not exhausted their administrative remedies to
pursue their claim through an administrative-remedy process while the lawsuit
is stayed. With this refinement to the PLRA, prison officials will retain the
opportunity to interview material witnesses, marshall relevant evidence, and
resolve grievances, either averting or preparing for litigation.
3. Eliminate the restrictions on the equitable authority of courts in conditions-of-
confinement cases. Lawsuits seeking injunctive relief have been brought to
remedy what are sometimes egregious violations of prisoners’ constitutional
rights. See, e.g., Tillery v. Owens, 907 F.2d 418 (3d Cir. 1990) (cellblocks
infested with vermin, bed bugs, mice, fleas, and lice; bird feces on floors and
railings and “so dense” that cellblock windows are “virtually covered”;
auditorium and gymnasium, where several hundred inmates are supervised by
one correctional officer, are “dens of violence”; no master system for
unlocking cells during a fire, as a result of which it would take at least fifteen
minutes to evacuate all inmates from a cellblock, although the block would be
filled with smoke within two to three minutes); Gates v. Collier, 501 F.2d
1291 (5th Cir. 1974) (water supply contaminated with sewage; exposed
electrical wiring; lack of sufficient fire-fighting equipment; broken windows;
cells known as the “dark holes,” which lack lights, a sink, a toilet, or furniture
and which have a hole in the floor for bodily wastes; inmates placed in the
dark hole without clothes or bedding; brutal methods of discipline employed,
including the forced administration of milk of magnesia to inmates and
turning fans on wet and naked inmates); Madrid v. Gomez, 889 F.Supp. 1146
(N.D. Cal. 1995) (endemic failure to meet prisoners’ medical needs and
prevalent use of excessive force against prisoners, such as when correctional
officers held a mentally ill prisoner in a bathtub of scalding water, burning
him so badly that large clumps of skin from his buttocks hung down around
his legs).
Despite the importance of enforcing prisoners’ constitutional rights and the
demonstrated penchant of some government officials to violate or tolerate
violations of those rights, the PLRA significantly restricts, in a number of
ways, the traditional equitable power of courts to redress unconstitutional
conditions of confinement. To give but three examples of ways in which the
PLRA has contracted courts’ remedial authority, the Act limits the amount of
time that a preliminary injunction can remain in effect in a conditions-of-
confinement case to just ninety days. 18 U.S.C. § 3626(a)(2).
Second, the Act provides that upon motion of a defendant or certain state or
local officials, an injunction will be terminated two years after its entry unless
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the court finds that the injunction is needed to remedy a “current and ongoing”
violation of a federal right, extends “no further than necessary to correct the
violation,” is “narrowly drawn,” and is the “least intrusive means” of
correcting the violation. Id. § 3626(b)(1)(A)(i); id. § 3626(b)(3). In other
words, to avoid termination of the injunction, the plaintiffs must once again
prove their entitlement to relief. (By contrast, when defendants seek
termination of an injunction in a case in which nonprisoners prevailed, the
defendants have the burden of proving that they are operating an institution in
conformance with the Constitution and that it is unlikely that they will resume
their unconstitutional conduct. Board of Education v. Dowell, 498 U.S. 237,
247 (1991)). And even if the prisoner-plaintiffs are able to make the showing
required by the PLRA, the Act allows the defendants to file a termination
motion every year thereafter, placing perpetual and onerous burdens on the
plaintiffs and the court. 18 U.S.C. § 3626(b)(1)(A)(ii).
Finally, the mere filing of a motion to terminate an injunction, without more,
automatically stays the injunction thirty to ninety days after the motion is
filed. Id. § 3626(e)(2). In other words, enforcement of the injunction halts
pending the adjudication of the motion even if the defendants have failed to
comply with the injunction and unconstitutional conditions persist in the
prison.
As the American Bar Association has long contended, legislation should not
curtail the remedies available to federal courts to enforce constitutional rights.
Report of the Board of Governors to the House of Delegates, Annual Report
of the American Bar Association 701 (1982). In addition, the scope of the
courts’ equitable powers in cases involving prisoners should be no different
than the scope of those powers in cases brought by all other litigants. The
remedial authority that the PLRA has wrested from courts therefore should be
returned to them. And to the extent that the enactment of these restrictions on
the courts’ equitable powers stemmed from legitimate concerns about the
length of time that some correctional facilities have operated under a court
order, Congress should initiate a full- ranging factual inquiry to determine the
reasons for the prolonged periods of time that some court orders have been in
effect. See, e.g., Glover v. Johnson, 934 F.2d 703, 715 (6th Cir. 1991) (“The
history of this case shows a consistent and persistent pattern of obfuscation,
hyper-technical objections, delay, and litigation by exhaustion on the part of
the defendants to avoid compliance with the letter and the spirit of the district
court’s orders. The plaintiff class has struggled for eleven years to achieve the
simple objectives of equal protection under the law generally, and equality of
opportunity specifically.”). Only then can an informed decision be made as to
what steps Congress can and should take to ensure that unconstitutional
conditions of confinement are abated promptly.
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4. Amend the PLRA to allow prisoners who prevail on civil-rights claims to
recover the same attorney’s fees recoverable in civil-rights cases brought by
the general public. Title 42 U.S.C. § 1988(b) provides for the award of
“reasonable” attorney’s fees to parties who prevail in suits brought under §
1983 and several other federal statutes to enforce civil rights. Believing that
the enforcement of civil rights is of the “highest priority,” S. REP. NO. 94-
1011, at 3 (1976), Congress enacted § 1988 because, without a fee-award
provision enabling lawyers to recover their costs in representing civil-rights
plaintiffs, victims of civil-rights violations often would be unable to procure
the assistance of counsel. The nation’s civil-rights laws then would go largely
unenforced. See id. at 5 (“In several hearings held over a period of years, the
Committee has found that fee awards are essential if the Federal statutes to
which S. 2278 applies are to be fully enforced.”); 122 CONG. REC. 35,182
(statement of Rep. Seiberling) (“[A] failure to authorize the awarding of
attorneys’ fees in civil rights cases will, as a practical matter, repeal the civil
rights laws for most Americans.”).
The requirement that the attorney’s fees awarded under § 1988 be
“reasonable” already places limits on the fees that can be awarded prevailing
plaintiffs in civil-rights actions. For example, the degree to which a plaintiff
has or has not succeeded in a case is factored into the assessment of what are
“reasonable” attorney’s fees and can affect the size of the fee award. Hensley
v. Eckerhart, 461 U.S. 424, 434-36 (1983).
But the PLRA places a number of additional restrictions on the attorney’s fees
that can be recovered under § 1988 by prisoner-plaintiffs who prevail in civil-
rights suits, restrictions that do not apply to any other prevailing litigants. For
example, instead of the defendant paying the full fee award, a certain portion
(up to twenty- five percent) of the damages a prisoner recovers must be applied
to pay the attorney’s fees awarded against the defendant. 42 U.S.C. §
1997e(d)(2). In addition, the PLRA imposes a cap on the hourly rate at which
attorneys who represent prevailing prisoners are reimbursed, creating a
disincentive for attorneys to represent prisoners. Id. § 1997e(d)(3). And no
matter how much time a lawyer invests in a prisoner-client’s case, the fee
award is capped at 150% of the judgment. Id. § 1997e(d)(2). See Riley v.
Kurtz, 361 F.3d 906, 917-18 (6th Cir. 2004) (finding that the 150% cap
forbade the award of additional attorney’s fees for the over $25,000 in fees
and expenses incurred by the prisoner’s counsel in successfully defending on
appeal the judgment entered on the prisoner’s behalf). For example, if a
prisoner recovers a hundred dollars in damages, the fee award will be just
$150, hardly the recompense needed to enable prisoners seeking damages for
violations of their constitutional rights to procure the assistance of counse l.
See, e.g., Robbins v. Chronister, 435 F.3d 1238 (10th Cir. 2006) (finding that a
prisoner awarded one dollar in damages for the violation of his Fourth
Amendment rights was entitled to $1.50 in attorney’s fees).
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These restrictions on attorney’s fees make it even more difficult for prisoners
to secure counsel to represent them in cases brought to remedy violations of
their civil rights. Consequently, the Commission on Safety and Abuse in
America’s Prisons recommended that the PLRA’s restrictions on attorney’s
fees be removed. Commission on Safety and Abuse in America’s Prisons,
Confronting Confinement 86 (2006). The American Bar Association joins in
that recommendation.
5. Repeal the PLRA provisions extending its requirements to juveniles confined
in juvenile detention and correctional facilities. The PLRA’s proponents
professed that its provisions were designed to curb the filing of frivolous
lawsuits by prisoners. Juveniles incarcerated in juvenile detention and
correctional facilities had not filed the frivolous lawsuits that those lobbying
for the PLRA’s enactment referred to in largely unsubstantiated anecdotes.
See Hon. Jon O. Newman, Pro Se Prisoner Litigation: Looking for Needles in
Haystacks, 62 Brook. L. Rev. 519, 520-22 (1996) describing the accounts of
the prisoners’ lawsuits cited in an effort to secure the PLRA’s passage as “at
best highly misleading and, sometimes, simply false”). In fact, because of
their age and other encumbrances, incarcerated juveniles file very few
lawsuits at all, much less frivolous lawsuits, even when they have suffered
gross violations of their constitutional rights. Nonetheless, the PLRA’s
provisions currently apply to children confined in detention and correctional
facilities for juveniles, further diminishing the protection the law affords this
very vulnerable stratum of confined individuals. See, e.g., Minix v. Pazera,
2005 WL 1799538 (N.D. Ind. 2005) (federal claims dismissed because
plaintiff, who was repeatedly raped while confined in juvenile facilities a nd
whose mother contacted numerous government officials in her “heroic
efforts” to protect her son, failed to file a formal grievance protesting the
defendants’ failure to protect him).
6. Repeal the PLRA’s filing-fee provisions. The PLRA’s filing- fee provisions
impose a heavy financial burden on poor prisoners who want and need to file
a federal lawsuit in order to obtain relief from violations of their civil rights.
Under these provisions, indigent prisoners who bring a federal lawsuit and
cannot pay the full filing fee upfront must pay a partial filing fee at the outset
and must pay the entire fee over time, a requirement to which no other
indigent litigant is subject. 28 U.S.C. § 1915(b)(1). These filing- fee
provisions not only raise concerns because of their disparate treatment of
prisoners but also because the size of the filing fee -- now $350 in federal
district courts -- dissuades impoverished prisoners from bringing potentially
meritorious claims to court.
In addition to adopting the recommended amendments to the PLRA set forth
above, Congress should fully examine the repercussions of other PLRA provisions on the
ability of inmates with meritorious legal claims to obtain redress for the violation of their
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federal rights. Because access to the courts is crucial to the enforcement of constitutional
and other legal rights, the burden is upon those who favor these other PLRA restrictions
to demonstrate that they do not frustrate the enforcement of the Constitution and civil-
rights laws or impair the ability of prisoners to obtain full redress for violations of their
legal rights.
Following the enactment of the PLRA, many states adopted state statutes that
mirrored its provisions and were designed to restrict prisoners’ access to state courts. See
Margo Schlanger, Inmate Litigation, 116 Harv.L.Rev. 1555, 1635 & nn. 271-72 (2003).
As a first and immediate priority, state legislatures should repeal or amend the statutory
provisions that are the state counterparts to the PLRA provisions highlighted above. In
addition, the state legislatures should hold hearings to determine if other provisions in the
states’ statutes should be repealed or amended because they impede the enforcement of
inmates’ legal rights.
Finally, Congress should hold hearings to determine what steps the federal
government can take to foster the just resolution of prisoners’ complaints by correctional
grievance systems. Those steps might include linking federal funding to specified
improvements in grievance processes, technical assistance from the federal government
to improve those processes, and further changes in the PLRA to limit application of the
exhaustion requirement to grievance systems that meet certain delineated requirements.
State and local governments also should identify and take steps to improve the
functioning of correctional grievance systems. If grievance systems are structured in a
way that maximizes their potential to solve problems, address prisoners’ legitimate
concerns, and remedy violations of prisoners’ legal rights, prisoners will be less likely,
and have less of a need, to turn to the federal courts for redress . 1
Respectfully Submitted,
Robert M.A. Johnson, Chair, Criminal Justice Section
February 2007
1
For a d iscussion of some of the structural features of a grievance system that may avert the need for
lit igation, see LIMITING THE BURDENS OF PRO SE INMATE LITIGATION: A TECHNICAL-
ASSISTA NCE MANUA L FOR COURTS, CORRECTIONA L OFFICIA LS, AND ATTORNEYS
GENERA L (A merican Bar Association 1997).
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